In Re: Adoption of R.J.B. and S.B.B., C.B. v. Z.C. (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: November 16, 2017
• Docket: 29A02-1705-AD-1123
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any FILED court except for the purpose of establishing Nov 16 2017, 6:22 am

the defense of res judicata, collateral CLERK Indiana Supreme Court estoppel, or the law of the case. Court of Appeals and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Jill A. Gonzalez Ryan H. Cassman Muncie, Indiana Brandi A. Gibson Coots, Henke & Wheeler, P.C. Carmel, Indiana

IN THE COURT OF APPEALS OF INDIANA

In Re: Adoption of R.J.B. and November 16, 2017 S.B.B., Court of Appeals Case No. 29A02-1705-AD-1123 C.B., Appeal from the Hamilton Appellant-Respondent, Superior Court v. The Honorable Steven R. Nation, Judge Z.C., Trial Court Cause No. 29D01-1602-AD-191 Appellee-Petitioner.

Bradford, Judge.

Court of Appeals of Indiana | Memorandum Decision 29A02-1705-AD-1123 | November 16, 2017 Page 1 of 4 Case Summary [1] Appellee-Petitioner Z.C. (“Stepfather”) is married to M.C. (“Mother”). In

early 2016, he petitioned to adopt her children R.J.B. and S.B.B. in Hamilton

County, Indiana. Appellant-Respondent C.B. (“Father”), the biological father

of the children, contested the adoption. Approximately two months later,

Father also filed an objection to venue in Hamilton County. The trial court

denied Father’s objection.

[2] Father argues that the trial court erred in denying his objection to venue in

Hamilton County. Because Father did not raise the claim before contesting the

adoption and it was not raised as an affirmative defense, the issue is waived.

Consequently, we affirm the judgment of the trial court.

Facts and Procedural History [3] On February 10, 2016, Stepfather and Mother filed a petition for adoption and

notice of adoption in Hamilton County. Father received notice of the adoption

petition on February 17, 2016. On March 4, 2016, Father contested adoption in

Hamilton County. On May 2, 2016, Father filed his objection to venue in

Hamilton County. In his motion, Father alleged that Hancock County was the

proper venue for the adoption.

[4] On June 8, 2016, the trial court issued its order denying Father’s objection to

venue in Hamilton County. In the months that followed, the trial court also

denied two motions to reconsider.

Court of Appeals of Indiana | Memorandum Decision 29A02-1705-AD-1123 | November 16, 2017 Page 2 of 4 [5] On February 2, 2017, the trial court held a hearing on the contested adoption.

On March 8, 2017, the trial court issued its finding of fact, conclusions of law,

and judgment. Among other things, the trial court granted the adoption

petition.

Discussion and Decision [6] The only issue Father raises on appeal is whether the trial court erred when it

denied Father’s objection to venue in Hamilton County. This court reviews the

“grant or denial of a Trial Rule 12(B)(3) motion based upon improper venue

under Trial Rule 75 for an abuse of discretion.” Shanklin v. Shireman, 659

N.E.2d 640, 642 (Ind. Ct. App. 1995). An abuse of discretion may occur when

the trial court’s decision is “clearly against the logic and effect of the facts and

circumstances before the court, or if the trial court has misinterpreted the law.”

McCullough v. Archbold Ladder Co., 605 N.E.2d 175, 180 (Ind. 1993).

[7] “The question of improper venue must be raised by motion or by affirmative

defense. If made by motion, it must be made prior to the filing of a pleading. If

not, it must be raised as an affirmative defense. If not so raised, the issue is

waived.” Sanson v. Sanson, 466 N.E.2d 770, 773 (Ind. Ct. App. 1984). Father

filed no motion to dismiss on those grounds prior to filing his motion to contest

adoption, and his motion contained no affirmative defense alleging improper

venue. Consequently, Father has waived the claim.

[8] We affirm the trial court’s judgment.

Court of Appeals of Indiana | Memorandum Decision 29A02-1705-AD-1123 | November 16, 2017 Page 3 of 4 May, J., and Barnes, J., concur.

Court of Appeals of Indiana | Memorandum Decision 29A02-1705-AD-1123 | November 16, 2017 Page 4 of 4